Page 1

        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.852 OF 2013 (Arising out of S.L.P (Crl.) No.2597 of 2012)

Manoj and Anr. …Appellants

Versus

State of Karnataka …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal by special leave arises out of a judgment  

and order dated 15th November, 2011 passed by the High  

1

Page 2

Court  of  Karnataka,  Circuit  Bench  at  Gulbarga,  whereby  

Criminal Appeal No.3643 of 2009 filed by the appellants has  

been  partially  allowed  upholding  their  conviction  and  

sentence under Section 302 read with Section 34 IPC, but  

setting aside their  conviction under  Section 506 read with  

Section 34 of the IPC.

3. Briefly stated the prosecution case is that the deceased  

Sadashiv was unhappy about appellant No.1-Manoj visiting  

his house and associating with his wife for he suspected an  

illicit intimacy between the two. He had, therefore, forbidden  

Manoj from coming to his house and in case he did so he had  

threatened to kill him.  The prosecution story is that on 30th  

August, 2006 at about 12 noon appellant No.1-Manoj and his  

father-appellant No.2 assaulted the deceased while the latter  

was in front of a shop owned by one Khilari near Babanagar  

bus stand within the limits of  Tikota Police Station.  While  

appellant  No.2 is  alleged  to  have assaulted  the  deceased  

with a  stone on his head appellant  No.1-Manoj  is said to  

have  given  several  blows  to  the  deceased  with  a  sword  

injuring him on his neck, head and face. The incident, was  

2

Page 3

allegedly seen by five eye witnesses, some of whom carried  

the injured to the Police Station from where he was referred  

to  the  District  Hospital  for  treatment.  The  deceased,  

however, passed away before reaching the hospital leading  

to the registration of a case against the father and the son  

under Sections 302 and 506 read with Section 34 of the IPC.  

A  charge-sheet  was  in  due  course  filed  against  the  two  

accused  persons  before  the  jurisdictional  Magistrate  who  

committed  the  accused  to  face  trial  before  the  Principal  

District  and  Sessions  Judge,  Bijapur.  At  the  trial,  the  

prosecution examined as many as 22 witnesses apart from  

placing reliance upon several documents marked as Exs.P1  

to P24 and material objects MOs1 to 12.  In their statements  

recorded  under  Section  313  of  the  Cr.P.C.,  the  accused  

persons  denied  the  charges  and  pleaded  innocence.  No  

evidence was, however, adduced by them in defence.  The  

trial  Court  eventually  came  to  the  conclusion  that  

prosecution  had  brought  home  the  guilt  of  the  accused  

persons for offences punishable under Sections 302 and 506  

read with Section 34 of the IPC.  

3

Page 4

4. The appellants were accordingly sentenced to undergo  

imprisonment for life besides a fine of Rs.10,000/- each for  

offence punishable under Section 302 read with Section 34 of  

the IPC and a sentence of simple imprisonment for one year  

and a fine of Rs.2,000/- each under Section 506 read with  

Section 34 of the IPC.

5. Aggrieved  by  their  conviction  and  the  sentence,  the  

appellants appealed to the High Court of Karnataka, Circuit  

Bench  at  Gulbarga  who  has  in  terms  of  the  judgment  

impugned  in  this  appeal  affirmed  the  conviction  and  the  

sentence  under  Section  302  read  with  Section  34  IPC  

awarded by the trial Court but set aside the conviction and  

sentence under  Section 506 read with Section 34 IPC, as  

noticed above. The present appeal assails the correctness of  

the said judgments and orders of the Courts below.   

6. We have heard at some length learned Counsel for the  

parties who have taken us through the evidence adduced at  

the trial.  Out of 22 witnesses examined at the trial by the  

prosecution, PWs-4, 5, 7, 17 and 19 have turned hostile. No  

support is available from the deposition of the said witnesses  

4

Page 5

to  the  prosecution  story.  PW-8-Shrishail  Shettappa  

Shelannavar  and  PW-18-Mahadev  have,  however,  fully  

supported the prosecution version.  PW-16-Padawwa-wife of  

the deceased has also appeared to support the prosecution  

case.  We  shall  briefly  refer  to  the  depositions  of  these  

witnesses especially because the judgments delivered by the  

trial Court and the High Court have found the same to be  

credible  and  placed  reliance  upon  them  for  holding  the  

appellants guilty.   

7. PW-8-Shrishail  Shettappa  Shelannavar  deposed  that  

the incident leading to the death of the deceased-Sadashiv  

took place near a hotel at Babanagar at 11:30 a.m. in the  

morning.  According to the witness, he had come out of the  

hotel (the witness means a roadside Dhaba) after taking tea  

only to find that a verbal altercation was going on between  

the accused on the one hand and the deceased-Sadashiv on  

the  other.  It  was  in  the  course  of  this  altercation  that  

appellant No.2-Amagond threw a stone at Sadashiv which hit  

the latter on his head. On receiving the injury the deceased  

fell to the ground whereupon appellant No.1-Manoj inflicted  

5

Page 6

injuries on his neck and other parts of the body with a sword.  

Seeing the assault on the deceased, people from the hotel  

vicinity  started  running  helter-skelter.  The  deceased  was  

removed  from  the  site  in  a  vehicle  after  the  appellants  

escaped from the place of occurrence. The witness identified  

the  sword  and  the  stone  with  which  the  deceased  was  

assaulted by the appellants.   

8. In cross-examination, the witness stood by his version  

and stated that he often goes to the hotel (dhaba) situate  

near Babanagar bus stand whenever he does not have to  

attend to any urgent work.  The witness further stated that  

he had cordial relations with the accused persons but did not  

question  them  about  the  reason  for  the  assault  on  the  

deceased. None of those on the spot had come to the rescue  

of Sadashiv who was sitting alone before the assault started.  

The witness denied being a relative of the deceased Sadashiv  

or  that  he  was deposing falsely.   There  is  nothing in the  

cross-examination of this witness that may lend any support  

to the defence nor has the deposition of the witness been  

shattered in cross-examination.  

6

Page 7

9. Coming then to the statement of PW-18-Mahadev, the  

witness stated that the deceased was his elder brother and  

lived four to five houses away from his house at Babanagar.  

The  appellants  were  also known to  the  witness  whom he  

identified.  The witness stated that appellant-Manoj used to  

visit the house of Sadashiv giving rise to a suspicion in his  

mind that his wife had illicit intimacy with said appellant.  The  

deceased  had  warned  appellant-Manoj  in  that  regard  and  

asked him not to visit his house.  Such warnings were given  

to the deceased nearly fifteen days before the date of the  

incident despite which the appellant-Manoj had come to the  

house  of  Sadashiv  two  days  prior  to  the  occurrence  

whereupon  the  deceased  had  threatened  Manoj  that  he  

would kill him if he visited again.   

10. On the date of occurrence at about 12 noon the witness  

and PW-8-Shrishail  Shettappa  Shelannavar  were  sitting in  

front of the dhaba belonging to one Allisab after taking tea.  

The deceased was at that time sitting in front of the dhaba of  

one Suresh and smoking a beedi on the opposite side of the  

road.   It  was then that  the appellants came to the  spot.  

7

Page 8

Manoj  was  armed  with  a  sword  while  appellant  No.2-his  

father had a stone. He threw the stone towards the deceased  

that hit him on his head.  Because of the injury the deceased  

fell  down  whereafter  the  Appellant-Manoj  gave  to  the  

deceased  four  to  five  blows  with  the  sword  that  he  was  

carrying. The witness and Shrishail Shettappa Shelannavar  

tried to rescue the victim but Manoj threatened to kill them if  

they intervened. After the incident, the appellants ran away  

from the spot thinking that Sadashiv was dead.  The witness  

then brought water for the deceased to save his life as he  

was bleeding profusely from the head and neck.  They took  

the  deceased  to  the  Tikota  Police  Station  in  a  Tom Tom  

vehicle wherefrom they were referred to a District Hospital at  

Bijapur with a constable deputed to accompany them.  While  

going to the hospital the deceased succumbed to his injuries  

whereupon they returned to the Police Station to lodge a  

report about the incident.  The witness identified the sword  

and the stone used by the appellants in the course of the  

incident.  

8

Page 9

11. We may also at this stage refer to the deposition of PW-

16-Padawwa-wife  of  the  deceased.  This  witness  has  

supported the prosecution version inasmuch as she stated  

that the appellant-Manoj used to visit her house to talk to  

her on account of which her husband entertained a suspicion  

about  her  fidelity.  The  deceased  had  admonished  the  

appellant and asked him not to come to his house and if he  

did so he would kill him.  On the date of the occurrence the  

deceased left his house for the bus stand in the morning but  

around  12:30  p.m.  some  people  residing  in  the  

neighbourhood informed her that the appellant- Manoj had  

assaulted the deceased with a sword while appellant No.2  

had inflicted an  injury  upon  his  head with a  stone.   She  

rushed to the spot to find that the deceased was alive and  

water was being poured in his mouth by the people present  

including  Mahadev,  Gopal  and  Shrishail  who  took  the  

deceased  to  Tikota  Police  Station.  The  witness  also  

accompanied them.   

12. The medical  evidence adduced in the case comprises  

the  deposition  of  Dr.  Nandini  who  conducted  the  post  

9

Page 10

mortem examination on the deceased and opined that the  

death  was  due  to  hemorrhagic  shock  secondary  to  

hypovolemic  shock.   The  following  external  injuries  were  

found on the body of deceased which were certified by him to  

be ante-mortem:

“(a) Cut lacerated wound of about 4 x 1 cm deep   present over right angle of eye frontal bone fracture   seen.

(b) Crush injury on left cheek 3’x half inch deep.

(c) Cut lacerated wound over left angle of mouth 4’   x half inch deep.

(d) Cut lacerated wound 5 cm present over extensor   surface of wrist on medial side.

(e) CLW of about 5 x 2 and half inch present over   upper  neck  of  leftside,  C2  vertebra  fracture   present.”

13. The witness opined that these injuries were sufficient to  

cause death in the ordinary course of nature. The witness  

further stated that while the crush injury noted by him on  

the dead body could be caused with stone MO.2 the other  

injuries could be caused by MO.1 Hatiyar (sword).  The FSL  

report  (Ex.P.19)  which  was  also  pressed  into  service  by  

prosecution proved that the blade portion of sword (MO.1)  

and stone (MO.2) were blood stained.

10

Page 11

14. There is, in our opinion, no manner of doubt that the  

three  witnesses  referred  to  earlier  have  clearly  testified  

about  the  sequence  of  events  leading  to  the  death  of  

Sadashiv which version has been found to be reliable by the  

Courts below. We see no reason to strike a discordant note  

for there is hardly any infirmity in the depositions referred to  

above  which  have  stood  the  test  of  lengthy  cross-

examination by the defence. That the deceased suspected  

his wife’s fidelity and an illicit intimacy with appellant-Manoj  

is sufficiently proved from the deposition of the widow of the  

deceased, Shreshiala and Mahadev the other two witnesses  

referred to above. It is also evident from the said depositions  

that the deceased had forbidden the appellant-Manoj from  

coming to his house and threatened to kill him in case he did  

so  again.  This  happened  shortly  before  the  incident  in  

question. The mutual relationship between the deceased and  

the appellant-Manoj was thus embittered.  On the date of  

the occurrence the presence of the deceased around the bus  

stand  where  the  occurrence  took  place  has  also  been  

sufficiently  proved  by  the  deposition  of  the  witnesses  

including the police witnesses who have prepared the site  

11

Page 12

plan  and  made  seizures  from  the  spot.  So,  also  the  

presence of the two eye witnesses on the spot at the time of  

occurrence in a place like a bus stand is in no way abnormal  

to  cast  any  doubt  about  their  credibility.  The  medical  

evidence  adduced  at  the  trial  too  supports  the  ocular  

version. The doctor has clearly reported that the crush injury  

on the face could be caused by the stone (MO.2) while the  

other injury could have been inflicted by the sword which  

appellant-Manoj  was allegedly carrying at  the time of the  

incident.  The presence of human blood on these two objects  

sufficiently  supports  the  prosecution  case  that  the  said  

weapons were used for the commission of the offence.   

15. Learned Counsel  for  the  appellants,  however,  argued  

that even though appellant-Manoj was alleged to have used  

the sword to inflict injuries on the deceased, the role played  

by appellant No.2 was restricted to throwing a stone towards  

the deceased.  Even when the stone had caused an injury  

there was nothing to show that it was intended to kill the  

deceased  especially  when  it  is  not  the  case  of  the  

prosecution that even after the stone had hit the deceased  

12

Page 13

the assault was continued by appellant No.2 with or without  

the  help  of  appellant  No.1-Manoj.   There  is  considerable  

merit in that submission. Even according to PW-8-Shrishail  

Shettappa Shelannavar when he stepped out of the dhaba,  

he found a verbal altercation going on between the deceased  

and the accused persons.  In the course of that altercation  

appellant No.2 does appear to have hurled a stone towards  

the deceased which hit and injured him but there is nothing  

to show that the injury was by itself sufficient to cause death  

in the ordinary course nor is there anything to show that  

there was any pre-concert between the appellant-Manoj and  

his  father  to  kill  the  deceased.  In  the  absence  of  any  

evidence, let alone evidence that is reliable and cogent, to  

show that appellant No.2 intended to cause death or shared  

the intention to cause death with his son, it is difficult to  

sustain his conviction for murder punishable under Section  

302  of  the  IPC.  The  prosecution  has  not  even  alleged  a  

motive against appellant No.2. The motive based on illicit  

relationship  between  appellant-Manoj  and the  wife  of  the  

deceased, could hardly be attributed to appellant No.2, no  

matter,  the  incident  started  with  an  altercation  in  which  

13

Page 14

even  he  got  involved.  The  sudden  fight  between  the  

appellants on the one hand and the deceased on the other,  

escalated  into  a  tragedy  for  the  deceased  but  the  

responsibility for  the  gruesome assault,  cannot  be  shifted  

from Manoj who used a dangerous weapon like a Sword to  

fatally injury the deceased.  The stone thrown by appellant  

No.2 may have triggered the incident to its ugly end but  

beyond  that  appellant  No.2  cannot  be  attributed  the  

responsibility of  murder  with or  without the  assistance of  

Section 34 of the IPC. Appellant No.2 can at best be held  

guilty of causing grievous hurt to the deceased punishable  

under Section 325 of the IPC.   

16. In  the  result,  we  dismiss  this  appeal  insofar  as  

appellant-Manoj  is  concerned  and  uphold  his  conviction  

under Section 302 IPC and the sentence awarded to him.  

The conviction of appellant No.2 is, however, altered from  

Section 302 read with Section 34 IPC to Section 325 IPC.  

Appellant  No.2 has  been  in  jail  for  nearly  3½ years  now  

which sentence should, in our opinion, suffice. Appellant No.2  

is accordingly sentenced to imprisonment already undergone  

14

Page 15

by him. He shall be released from custody if not otherwise  

required in connection with any other case.  The sentence of  

fine imposed upon the said appellant shall however remain  

unaltered.             

………………...…………J. (T.S. THAKUR)

…………………...………J. (GYAN SUDHA MISRA)

New Delhi July 5, 2013

15